ThottathilB. Radhakrishnan, J.

1. The appeal and the revision in hand, arise from a sessions case tried by the Special Judge (SPE/CBI).

2. Three persons were arrayed as accused in a case registered, investigated and final report submitted by the CBI. The proceedings against the first accused abated as he died during inquiry. The other two were tried. The second accused was found guilty of offence punishable under section 302 read with Section 34 IPC. He stands convicted and sentenced to undergo imprisonment for life and to pay fine of rupees 10,000/-, with default sentence of simple imprisonment for six months. The third accused was acquitted.

3. The appeal is by the second accused, challenging his conviction and the sentence imposed. The revision is by the brother of the victim. He challenges the acquittal of the third accused and pleads that the sentence imposed on the second accused be enhanced from life imprisonment to death.

4. The prosecution case is as follows:

i. Varghese, a leader of a naxalite gang, was involved in a number of murder and decoity cases in Wayanad area of Kannur District in the early 1970. He was wanted as an accused person in crime numbers 22/70 to 25/70 of the Mananthawady police station for commission of offences of murder and dacoity in Thirunelli in the night intervening 09/10.02.1970.

ii. Various parties of different police forces were involved in combing operations in the forest areas to apprehend the naxalities in Thirunelli area.

iii. One unit of the 19th battalion of CRPF, headed by Subedar N.V. Peedikail was stationed in Thirunelli Vishnu Temple. Sub Inspector A.K. Achari (of the Kerala State police force) who was then posted at Chokkli police station, was attached to that unit of CRPF for liaison and guidance for that CRPF unit. He is now no more.

iv. Keshwan Moseth of Thirunelli informed Subedar N.V. Peedikail and Sub Inspector A.K. Achari, in the morning of 18.02.1970, at Thirunelli Vishnu Temple, about the presence of Varghese in the hut of Shivaraman Nair at Thirunelli.

v. On the basis of the aforesaid information, Subedar N.V. Peedikail, Sub Inspector A.K. Achari and other CRPF personnel including P.W.21 – Mohammed Hanifa (a CRPF Constable) and the first accused – Constable Ramachandran Nair, rushed to the hut of Sivaraman Nair, duly armed.

vi. The aforesaid police party broke open the door of that hut and apprehended Varghese.

vii. They brought Varghese towards the main road, with his hands tied behind his back.

viii. On the way, the police got Varghese identified by the villagers, in order to ascertain his identity.

ix. While Varghese was being taken in a police jeep to the Mananthawady police station, by the CRPF personnel, including first accused Ramachandran Nair, P.W.21 – Mohammed Hanifa and Sub Inspector A.K. Achari, they were stopped at Kattikulam Bridge and were ordered to return to Thirunelli Forest with Varghese in the custody of the second and third accused, namely, K. Lakshmana, Dy. SP, Tellicherry and P. Vijayan, DIG, Northern Range, Calicut.

x. Varghese was interrogated in Thirunelli Forest by the second and third accused, namely, K. Lakshmana and P. Vijayan.

xi. After the interrogation of Varghese, the second and third accused, namely, K. Lakshmana and P. Vijayan, ordered the first accused Constable Ramachandran Nair of CRPF to shoot Varghese dead in Thirunelli Forest, in furtherance of their common intention to eliminate Varghese in police custody.

xii. Accordingly, first accused Ramachandran Nair fired a single shot from a service rifle and shot Varghese dead at 6.55 p.m. on 18.02.1970 in Thirunelli Forest.

xiii. After Varghese was killed as above, a case was got registered as Crime No.28/70 of the Mananthawady police station, under section 174(1) CrlPC, on a compliant by the second accused K. Lakshmana, who was then the Dy. SP. Tellicherry, against the deceased Varghese for having fired at the police party.

xiv. In connection with the aforesa